SK (Zimbabwe) v Secretary of State for the Home Department

For article 7(1)(k) of the Rome Statute of the International Criminal Court, 1998, “similar character” requires other inhumane acts to be comparable in nature and gravity to the enumerated crimes, but not to reproduce their legal elements. The assessment is fact-sensitive and considers the act, context, intention and consequences. Serious violence short of killing may qualify. “Great suffering” or “serious injury” bears its ordinary meaning. Direct, intentional and substantial participation in a joint enterprise may found personal responsibility; mere membership is insufficient. The exclusion in article 1F(a) may therefore apply to brutal, systematic violence used to terrorise and displace civilians.

SK, a Zimbabwean national, claimed asylum after participating in the Zanu PF youth militia and two 2002 farm invasions. The Asylum and Immigration Tribunal found that she had participated in serious beatings and other violence, but had not killed anyone, and excluded her under article 1F(a) of the UN Convention relating to the Status of Refugees, 1951. Mitting J ordered reconsideration of whether the acts were “other inhumane acts of a similar character” under article 7(1)(k) of the Rome Statute of the International Criminal Court, 1998. The Upper Tribunal upheld the exclusion after finding that the invasions formed part of a widespread and systematic attack and that SK had actively contributed to them. The appeal concerned the meaning of “similar character” and the requirements of great suffering or serious injury.

1. The appeal was dismissed unanimously. The chapeau requirement in article 7 of the Rome Statute of the International Criminal Court, 1998 was accepted. The applicable standard under article 1F(a) of the UN Convention relating to the Status of Refugees, 1951 was “serious reasons for considering”, which is above mere suspicion and does not require proof to the criminal trial standard. The Court applied the approach in Regina (JS (Sri Lanka)) v Secretary of State for the Home Department [2010] UKSC 15.
2. “Similar character” under article 7(1)(k) refers to the nature and gravity of the act and its consequences. The acts need not share the legal elements of another crime against humanity. “Similar” does not mean identical. The assessment depends on the evidence and all the circumstances, including the context, intention and consequences. The conduct must nevertheless exceed the level of merely domestic criminality and be sufficiently serious to call for international sanctions. Strict construction does not confine the provision to the worst cases or require prior international recognition as a crime against humanity.
3. The threshold of great suffering or serious injury must be given its ordinary meaning. The Upper Tribunal’s findings that the invasions were deliberately brutal and terrifying, intended to drive farmers and workers from their homes, and involved beatings, burning, loss of livelihood and displacement, established the necessary seriousness. The conduct had a strong affinity with persecution and forcible transfer, although it was unnecessary to establish those as separate crimes.
4. Personal responsibility did not require leadership. Mere membership would not suffice, but active and intentional participation in mob violence, on a joint-enterprise basis and making a substantial contribution to the crime, was sufficient. SK had personally beaten civilians and shared the purpose of the invasions. Her exclusion from refugee status was therefore lawful. Lord Justice Stanley Burnton added that the racial element was aggravating but not essential.

• Court of Appeal (Civil Division) — On 19 June 2012, dismissed the appeal: [2012] EWCA Civ 807.
• Upper Tribunal (Immigration and Asylum Chamber) — On 6 August 2010, found that the two farm invasions were crimes against humanity under article 7(1)(k) and that SK’s active participation was sufficient for exclusion.
• Asylum and Immigration Tribunal and reconsideration process — IJ Buchanan’s determination dated 4 February 2009 excluded SK under article 1F(a). Mitting J ordered reconsideration confined to the “similar character” issue. SIJ Nichols subsequently required reconsideration on that discrete issue.